JOHN COLLIER, III v. BORGATA HOTEL CASINO & SPA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6132-07T16132-07T1

JOHN COLLIER, III,

Plaintiff-Appellant,

v.

BORGATA HOTEL CASINO & SPA, d/b/a THE BORGATA,

Defendant-Respondent,

and

CLEAN & POLISH, INC.,

Defendant.

________________________________

 

Submitted: May 20, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-9111-06.

Zenstein, Gallant & Parlow, P.C., attorneys for appellant (Kevin Baxter, on the brief).

Cooper Levenson April Niedelman & Wagenheim, P.A., attorneys for respondent (Walter J. LaCon, on the brief).

PER CURIAM

Plaintiff John Collier, III, appeals from a judgment dismissing his complaint against defendant Borgata Hotel Casino & Spa, doing business as The Borgata, based on a jury verdict of no cause for action on the issue of negligence. Plaintiff asserts that the trial court erred in admitting evidence during trial that he failed to file income tax returns subsequent to his slip and fall on the property of defendant. Because any error in admitting the evidence did not result in a miscarriage of justice, we affirm.

In light of the jury's verdict, our summary of the facts is confined to the allegations and evidence relevant to the issue of liability. Plaintiff patronized defendant's hotel and casino on September 17, 2004, arriving sometime around midnight. After having breakfast, plaintiff proceeded to a revolving-door casino exit at about 7:45 a.m. to ascertain whether the weather was good, in which case he would then go to work on his construction job. The door had a sweep to keep out inclement weather.

Plaintiff identified himself in a surveillance recording played at trial that showed him entering a revolving door and immediately falling. He did not see anything on the floor, any signs, or any washers. The weather was clear. The tile floor was shiny and glowing. He remembered his right foot jamming the door in front of him and his left leg was pinned below him when he fell. A male Borgota security officer asked if he required assistance. Plaintiff remembered feeling water on the floor around him; his hand and buttocks were soaked. The security officer said, "There's water in there," and left to get housekeepers to place warning signs. Security guards helped plaintiff out of the door and asked him if he needed help.

The onsite medical staff was unavailable, and the security guards asked plaintiff if they should call an ambulance. Plaintiff requested some time to make the decision. While waiting, plaintiff overheard a security guard talking into a radio. The guard said, "The cleaners was [sic] out here a short while ago, and water had drifted underneath the door." Plaintiff did not see cleaning people or equipment but he also testified he saw a cleaning truck outside after his fall.

Plaintiff conceded at trial he did not have an expert to opine that there was any defect in the flooring, the door, or the door sweep or that the floor was unusually slippery or slick. He admitted he had no problem walking across the lobby floor until he stepped within the revolving door. He admitted from the surveillance videotape that it did not look as though two people who came through the revolving door had any difficulty doing so. On questioning from the jury, plaintiff testified that the floor inside the revolving door was marble.

Gloria Martinez, a security supervisor employed by defendant, was called by plaintiff at trial. She testified part of her duties include overseeing customer safety. If a security officer sees water or a substance on a floor, they are required to stand by the area until the proper department comes and cleans it up.

Borgota also employs one rover for each of four zones in the casino and lobby and secondary rovers for assigned areas in each zone. The rovers walk their zones and the secondary rovers walk their assigned areas to oversee the safety of the casino. The lobby itself falls into two zones and, thus, has two rovers and two secondary rovers responsible for its safety. Martinez could not testify to the frequency of their rounds. Additionally, if the personnel operating the surveillance cameras observe anything presenting a safety hazard, they call security to address the issue.

Martinez, as supervisor for hotel security, was also responsible for the lobby. Specialist Lam prepared an incident report about this accident at 7:45 a.m. The report indicated that she responded to the accident with a wheelchair, although Martinez had no recollection of it. Lam reported plaintiff's version of the accident, including his statement that he fell on a puddle of water. Lam inspected the scene, which he reported "was clear, marble was damp." No other witnesses testified respecting liability.

The evidence relating to plaintiff's failure to file income tax returns arose in the following manner. Plaintiff had been deposed on June 6, 2007. At that time, plaintiff was asked whether he had lost any income as a result of his injuries and responded he had suffered a substantial loss over more than a year. Defendant immediately requested plaintiff's income tax returns for the tax years 2002 through 2006. Plaintiff responded that he had not filed returns for the three most recent years because he had misplaced most of his papers, but was in the process of doing so. Plaintiff later abandoned his lost-income claim and did not produce any income tax returns for the requested years.

Despite having abandoned that claim, on direct examination at trial, plaintiff's attorney examined him about the effect his injuries had on his life and he gave the following answers:

Q. . . . While you were treating [your injury], were there any effects on your life, on your activities?

A. Yes.

Q. What sorts of things?

A. Well, as I mentioned before, I was a construction worker, and a lot of times on ladders, roofs, and the like, and at that point I was uncomfortable moving in those areas. So I had to change the way that I had done things for X number of years. Instead of doing it myself, I had to hire somebody else to do it, or eventually I went to work for Habitat, and Habitat operate [sic] on volunteer labor. So my job was just supervising to get the job done, and of course, that meant a drastic reduction in my income.

. . . .

Q. Besides work, were any other parts of your life affected by this fall?

A. My family life and my financial life have suffered, yes.

On cross-examination, defendant's counsel questioned plaintiff about his employment, seeking to impeach his credibility, by using plaintiff's interrogatory answer in which he indicated he was "not employed" at the time of the accident. Plaintiff explained to the jury that he was self-employed and had understood the question to ask whether he had an employer. After this exchange, defendant's counsel asked:

Q. And you're not making a lost-income claim in this case, correct?

A. I am not.

Q. Is the reason for that that you haven't filed tax returns?

Plaintiff's counsel objected, arguing that the question was irrelevant as plaintiff was not making a lost-wage claim, that the evidence was "way more" prejudicial than probative, and plaintiff's income was too low to owe taxes anyway. Defendant's counsel responded:

[N]otwithstanding the fact that there was a representation that there was no wage-loss claim made by counsel on a number of occasions, there was a question and an answer that was specifically elicited to suggest that there was a substantial loss of income, and he testified that there was a substantial loss of income. So whether or not he's actually making a wage claim, he's got that issue before the jury. He has failed to comply with the law of this country in terms of the self-reporting and filing of federal income tax returns, and I think it's totally relevant.

The court overruled the objection without explication and advised plaintiff's counsel that he could "deal with the amount that [plaintiff] should have been filing or not filing on rehabilitation." Defendant's counsel then continued:

Q. For how many years did you not file tax returns, sir? For how many years did you not file tax returns?

A. Effective this year, four.

Q. Do you know that it's a crime not to file a tax return?

A. I believe there is a crime if you're

Q. Well, do you know that it's a crime not to file a tax return?

A. Yes.

Q. Okay, and when you were asked at your deposition about that, you said you were asked why you didn't do it. You said, "I just didn't do it," correct?

A. That may be my answer.

Plaintiff did not pursue the issue on redirect examination.

After the jury returned a verdict of no cause for action on June 5, 2008, plaintiff filed a motion for a new trial, arguing the trial court committed reversible error in allowing defendant to question plaintiff about his failure to file income tax returns. On August 1, 2008, the judge denied plaintiff's motion, concluding that plaintiff opened the door to the disputed line of cross-examination during his direct testimony. He also found that "it was not unreasonable or shocking to the judiciary conscience for the jury to conclude that his testimony was incredible and the defendant was not negligent." Thus, he was satisfied "that the jury verdict did not constitute a miscarriage of justice." This appeal followed.

"A trial court may order a new trial when, 'having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Caldwell v. Haynes, 136 N.J. 422, 431 (1994) (quoting R. 4:49-1). When considering a motion for a new trial based on erroneous judicial rulings, the trial court should determine whether its rulings were in fact erroneous and cumulatively created undue prejudice to the party seeking relief. Crawn v. Campo, 136 N.J. 494, 512 (1994). The court must

reevaluate[] those rulings in the context of a completed trial in determining that the earlier rulings, although within its discretionary authority, were ultimately shown to be erroneous. The pivotal consideration concerns the evidentiary impact of the court's ruling on the critical issue of witness credibility. The trial court [is] in the best position to assess fully the credibility of the witnesses in relation to the evidence adduced at trial.

[Ibid.]

"Deference should be accorded to the trial court's conclusion concerning the prejudice attributable to" any erroneous rulings. Ibid.; accord County of Monmouth v. Hilton, 334 N.J. Super. 582, 595-96 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). A reviewing court will not disturb the trial court's ruling on a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

We do not agree with the trial judge's conclusion on the motion for a new trial that his ruling on the admissibility of evidence respecting plaintiff's failure to file tax returns was not erroneous. Clearly, defendant sought to elicit this evidence in order to impeach plaintiff's character and credibility; he had already obtained a concession from plaintiff in front of the jury that he was not making a lost-wage claim. Defendant had every right to seek a specific instruction from the judge to that effect while plaintiff was still on the stand.

It was the judge's duty to analyze the issue based on the objection made, prejudice, and to apply Rule of Evidence 403 to the dispute before him. That rule permits the judge to exclude relevant evidence "if its probative value is substantially outweighed by the risk of . . . undue prejudice." Ibid. Our Supreme Court has required trial judges to articulate the basis for their finding of "substantial danger of undue prejudice, or the absence thereof, that would accrue to the objecting party if the proferred evidence were introduced." State v. Balthrop, 92 N.J. 542, 546 (1983) (emphasis added). This clearly was not done.

Even in the absence of such an explanation, it is clear that the judge mistakenly exercised his discretion to admit the evidence. On the other hand, "[d]eterminations pursuant to N.J.R.E. 403 should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted.'" Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)); accord State v. Moore, 122 N.J. 420, 467 (1991) ("To demonstrate an abuse of such discretion, the danger of undue prejudice must outweigh probative value so as to divert jurors from a reasonable and fair evaluation of the basic issue . . . ." (citation and internal quotations omitted)). Cross-examination about deficiencies in income tax returns where the proceeds of an unlawful conspiracy were not reported has been excluded under this rule on the ground that the questioning was "calculated to degrade" the witness's testimony and concerned matters that were not in issue. State v. Schlanger, 197 N.J. Super. 548, 552-54 (Law Div. 1984).

Here, the evidence of defendant's failure to file income tax returns was not in issue in the case and the questioning was clearly "calculated to degrade" plaintiff's testimony. The evidence should have been excluded as the prejudice substantially outweighed any possible probative value. The judge should have concluded that the evidence might divert the jurors from a reasonable and fair evaluation of the basic issues. His failure to do so constituted a palpable abuse of discretion that ordinarily would require our intervention on appeal.

However, despite our disagreement with the judge's legal conclusion that he did not err in admitting the evidence, we are satisfied that a new trial was not warranted. In order to make out a prima facie case of premises liability, plaintiff was required to show either (1) that defendant knew of the unsafe condition for a period of time prior to plaintiff's fall sufficient to permit defendant in the exercise of reasonable care to have corrected it; or (2) that the condition had existed for a sufficient length of time prior to plaintiff's injury that in the exercise of reasonable care defendant should have discovered its existence and corrected it. See, e.g., Parks v. Rogers, 176 N.J. 491, 498 n.3 (2003) (duty owed to a business visitor requires property owner to conduct a reasonable inspection of premises and guard against any dangerous conditions of which owner knew or should have known); Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003) (business owners owe a duty to invitees to "discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe"); accord Bauer v. Nesbitt, 198 N.J. 601, 615 (2008) (such a duty is appropriate because business owners are in "the best position to prevent and control the risk of harm to their patrons and others" (citation and internal quotations omitted)).

From our review of the evidence at trial, plaintiff did not show how long the water was on the floor. Without this proof, no reasonable jury could have concluded that defendant had sufficient time in which to exercise reasonable care to remove the water from the floor or should have discovered its existence and corrected it. Furthermore, defendant established that it exercised reasonable care to make inspections of its property through the employment and assignment of rovers responsible for casino and lobby safety.

As to plaintiff's claim that there had been some discussion by security guards about earlier window washing, there was no proof that anyone employed by Borgota did any window washing and there was no evidence that Borgota created the hazardous condition, another basis on which liability could have been imposed. See, e.g., Craggan v. Ikea USA, 332 N.J. Super. 53, 61 (App. Div. 2000) ("notice, actual or constructive, of a dangerous condition is not required when the shopkeeper, through acts of its agents or patrons, creates a dangerous condition"); O'Shea v. K Mart Corp., 304 N.J. Super. 489, 493-94 (App. Div. 1997) (notice not required where proprietor of a golf store stacked heavy, cumbersome bags in an unsafe fashion and failed to provide customer assistance, resulting in a customer who was injured when she tried to remove a bag).

This leads us to conclude that despite the prejudice arising from the admission of the subject evidence, there was no miscarriage of justice under the law in the judge's denial of plaintiff's motion for a new trial. R. 2:10-1.

Affirmed.

Summary judgment was granted to defendant Clean & Polish, Inc., on December 7, 2007. Subsequent references in this opinion to "defendant" or "Borgata" refer to defendant Borgata Hotel Casino & Spa.

We assume for the sake of argument that the evidence was relevant, although that is certainly questionable in light of plaintiff's concession that he was not making a lost-wage claim.

(continued)

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A-6132-07T1

August 31, 2009